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Bell/Gaerte: 3 things to know about ethical advocacy in closing argument

James J. Bell , K. Michael Gaerte
July 30, 2014
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Bell Gaerte 3 thingsRecently, several published decisions have found attorneys to have engaged in improper advocacy. Most of these decisions have been criminal cases in which prosecutors were found to have engaged in a series of impermissible arguments. In addition, there was one recent disciplinary decision that found an ethical violation when the attorney made unsupported statements in his closing argument. Here are three things to know about ethical advocacy in closing argument.

1. Rule of thumb: Stick to the record.

If you are in the heat of trial and can’t remember anything else from this article, just remember that if you only argue the facts that were entered into evidence, everything else should be smooth sailing. Rule 3.4(e) of the Indiana Rules of Professional Conduct states that “A lawyer shall not . . . in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.” Furthermore, in a criminal case, “the prosecutor is required to confine her closing argument to comments based upon the evidence presented in the record.” Brummett v. State, 10 N.E.3d 78, 9 (Ind. Ct. App. 2014). Stated in a slightly different way, “[i]t is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than his guilt.” Ryan v. State, 9 N.E.3d 663, 16 (Ind. 2014).

Applying these standards to recent cases, the court has found the following to be improper:

• Characterizing defense counsel’s argument as “how guilty people walk” or a “trick.” Ryan, 9 N.E.3d at 10.

• Requesting that the jury convict the defendant as part of a “bigger picture” and to send a message that stops other perpetrators of sexual misconduct like teachers, coaches or pastors. Id. at16.

• Suggesting that the defendant and defense counsel conspired to fabricate its defense. Brummett, 10 N.E.3d at 11.

2. Improper advocacy can be deemed unethical.

In Matter of M.A., 2014 Ind. LEXIS 507(Ind. 2014), the respondent was found to have violated Rule 3.4(e) of the Indiana Rules of Professional Conduct when he “made a number of inappropriate remarks during closing argument, including telling the jury that this would be a ‘perfect case for punitive damages’” even though the claim for punitive damages had been withdrawn. Id. at 4. In addition, the respondent improperly alluded to “facts that were not supported by admissible evidence, assert[ed] personal knowledge of facts in issue, and stat[ed] his personal opinion as to the justness of his clients’ cause and the credibility of a witness.” Id. at 4-5. The respondent was found in violation of other Rules of Professional Conduct and was sanctioned with a 60-day suspension.

In addition, some of the criminal cases cited above analyzed the Rules of Professional Conduct in evaluating whether the lawyer’s advocacy had been appropriate. For example, in Ryan, the Court of Appeals, quoting the Preamble to the Indiana Rules of Professional Conduct, held that a prosecutor’s improper comments regarding defense counsel were “inconsistent with the requirement that lawyers ‘demonstrate respect for the legal system and for those who serve it, including . . . other lawyers.” See Preamble [5], Ind. Professional Conduct Rules; Ryan, 9 N.E.3d at 10. In addition, the prosecutor’s comment that the witnesses “do not lie about the Defendant,” constituted improper commentary on “the justness of a cause” and the “credibility of a witness” in violation of Rule 3.4(e). Brummett, 10 N.E.3d at 15.

3. Opposing counsel can help stop the improper advocacy.

Whether the attorney is in a criminal or a civil case, the attorney’s opposing counsel has a role to play in preventing misconduct. For example, opposing counsel should know that he or she can open the door to otherwise improper arguments. In Neville v. State, 976 N.E.2d 1252, 1259-60 (Ind. Ct. App. 2012), a prosecutor made a comment in voir dire that could have been interpreted to suggest that a good judge and good defense attorney meant that the jury should not be concerned about a wrongful conviction.

While the court seemed “troubled” by this comment, it also noted that “[p]rosecutors are entitled to respond to allegations and inferences raised by the defense even if the prosecutor’s response would otherwise be objectionable.” Id. at 1260 quoting Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). Because the prosecutor was responding to defense counsel’s questioning about wrongful convictions, the court deemed that the comments did not rise to the level of fundamental error. Id.

Finally, opposing counsel obviously needs to object to improper comments. While the conviction in Brummett was reversed, the conviction in Ryan was not. Both cases involved similar arguments from the prosecutor. However, because defense counsel did not object, the judge did not stop the improper arguments at either trial and the cases were analyzed under a fundamental error analysis. While it will never be known what would have happened had a timely objection been made, the chances of a fair trial would have increased.•

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James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

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